Session November 5, 2014
Tenn. S.Ct. R. 51, § 2 ; Judgment of the Trial Court Affirmed. Appeal from the Chancery Court for Obion County. No. 28805. W. Michael Maloan, Chancellor.
Randy N. Chism, Union City, Tennessee, for the appellant, Goodyear Tire & Rubber Company.
Jeffrey P. Boyd, Jackson, Tennessee, for the appellee, Orville Lambdin.
GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.
GARY R. WADE, J.
During his thirty-seven years working for the employer, the employee suffered a gradual loss of hearing, especially at frequency levels of sound above 3000 hertz. Shortly after his retirement, he made a claim for workers' compensation benefits. After hearing the proof, the trial court ultimately found that the AMA Guides did not cover hearing losses at the higher frequencies and awarded a 30% vocational disability, not only for the anatomical impairment between 2000 and 3000 hertz but also for the impairment between 3000 and 4000 hertz. The employer appealed, asserting that the AMA Guides did not consider as an impairment hearing losses at levels higher than 3000 hertz and objecting to the method used by the employee's physician to ascertain anatomical impairment above that level. Because the evidence clearly established a hearing impairment above 3000 hertz and there was evidentiary support for the trial court's determination that expert testimony established an " appropriate" method for rating the impairment in a manner " used and accepted by the medical community," the judgment is affirmed.
I. Facts and Procedural History
Orville Lambdin (the " Employee" ) was employed by Goodyear Tire & Rubber Company (the " Employer" ) from 1972 until 2009, when he elected to retire pursuant to a voluntary buyout plan. Shortly after his retirement, the Employee sought workers' compensation benefits based upon hearing loss. When a benefit review conference did not resolve the claim, the Employee filed suit in the Obion County Chancery Court. The primary dispute at trial was the applicability of the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (" AMA Guides" ) to the high-frequency, noise-induced hearing loss sustained by the Employee. The AMA Guides provide an impairment rating formula for hearing loss in the ranges of 500,
1000, 2000, and up to 3000 hertz, but do not address hearing losses at frequencies higher than 3000 even though humans can typically hear at levels well over 10,000 hertz. A significant portion of the Employee's hearing loss is at frequencies beyond the 3000 hertz range, and the medical testimony offered on behalf of the Employee included an impairment assessment up to 4000 hertz.
At trial, the evidence established that the Employee, fifty-nine years of age at the time, had a high school diploma and was working as a school janitor for $7.64 per hour. Employed as a tire builder by the Employer in 1972, the Employee initially worked at a location in Jackson, Michigan. In 1983, he moved to Tennessee to work at the Employer's plant in Union City. At the time of his retirement in 2009, he earned $23.00 per hour. The Employer did not initially provide hearing protection for its workers. When the Employer first offered the protection, apparently at some point during the mid-1980s, the Employee chose to wear the device at all times. His tire-building duties included feeding raw material into a machine with " self-activating turn-up bags, which . . . squeal[ed] terribly," according to the Employee. A standard level of production for a tire builder approximates 200 tires in an eight-hour day and 300 tires on those occasions involving a twelve-hour shift. The Employee testified that gas-powered trucks, which regularly carried supplies to his work location, also produced high levels of noise. He recalled that he worked " in the middle of two aisles" such that he was subjected to traffic noise on both sides, as well as loud noise from a " jammer" operated by another worker across the aisle on his " left-hand side." He was also regularly subjected to loud tire-bladder blowouts. The Employee estimated that he was exposed to significant noise for all but forty minutes of a regular eight-hour day.
He further testified that in the last year and a half before his retirement, he changed from a manual tire builder to the operator of a G3 mechanism, which " built most of the tire." He described his new work environment as also " very noisy" because of the " self-activating tire bag[s]" used to run the G3s. The Employee complained that the ringing in his ears and his hearing loss was such that he was required to turn up the television and car radio to " real loud" levels in order to hear. He further stated that he was unable to hear normal conversation when there was background noise. Although he was regularly tested for hearing loss by the Employer, the Employee claimed that he was never notified of the results. The Employer's records indicated a gradual decline in the Employee's hearing during his years of service.
Dr. Karl Studtmann, a surgeon with a specialty in otolaryngology, first treated the Employee in November of 2009. After reviewing the periodic audiograms administered by the Employer beginning in 1986 and continuing until the Employee's retirement, Dr. Studtmann conducted his own examination, concluding that the Employee had developed " a downsloping, high-frequency sensorineural hearing loss in a checkmark pattern" and " ...